Trump to Nominate Noel Francisco to Be Solicitor General

  • He has served as acting solicitor general since inauguration
  • Francisco was former clerk to late Justice Antonin Scalia

President Donald Trump said he will nominate appellate lawyer Noel Francisco to be U.S. solicitor general and serve as the administration’s top advocate at the Supreme Court.

Francisco has been both deputy and acting solicitor general since Trump’s inauguration in January, though the lawyer has disqualified himself from some early cases because of the involvement of his former law firm. Most notably, Francisco wasn’t available to argue on behalf of Trump’s temporary travel ban before a federal appeals court blocked it last month. Trump made the announcement in a statement Tuesday.

The solicitor general serves as the federal government’s chief courtroom lawyer, deciding what cases to appeal and what positions to take before the Supreme Court. The office’s traditional influence with the court has earned it the unofficial moniker of "the 10th justice."

Francisco, a former law clerk to the late Justice Antonin Scalia, is one of more than a dozen lawyers from Jones Day Reavis & Pogue who have taken positions in the Trump administration. The group includes White House Counsel Don McGahn.

The nomination will end a meandering selection process for the position. Among those Trump considered was corporate lawyer George Conway, the husband of senior adviser Kellyanne Conway. Another top candidate, Washington lawyer Chuck Cooper, withdrew from consideration last month. Cooper is close to Attorney General Jeff Sessions, a fellow Alabaman.

High Court

Francisco has argued three Supreme Court cases -- all pitting him against the Obama administration. He persuaded the court to throw out the bribery conviction of former Virginia Governor Bob McDonnell last year. In 2014 he won limits on the president’s power to make temporary appointments during congressional recesses, though the court didn’t go as far as he urged.

He also argued last year on behalf of religious groups contesting Obamacare rules involving contraceptives. The groups said the Obama administration was coercing them into facilitating insurance coverage they considered to be immoral. The Supreme Court issued a compromise ruling that sidestepped the core issues and encouraged the two sides to work out their differences.

Francisco’s nomination may be complicated by a 1988 law that limits the president’s power to simultaneously nominate someone for a post and have them serve in that position in an acting capacity. One possibility is that the administration will appoint someone else as acting solicitor general once Francisco is formally nominated.

The scope of the 1988 law is currently before the Supreme Court. Ironically, Francisco’s old firm, Jones Day, is the one pressing the case for curbs on the president’s power.

Francisco must be approved by the Senate.

— With assistance by Jennifer Jacobs

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